Memogate Saga (options)

Barrister Amjad Malik, writes on options post Memogate scandal hits the road and SC issues direction(s) (London 6 December 2011)

Hussain Haqqani averted a possibility of a coup on 10 May by allegedly communicating a treasonous memo serving his masters, but in a fit of passion or heat the conditions offered are horrendous. If factually those terms of cooperation sought are correct such as promising to replace top army brass, boots on the ground, access to nuclear programme, ending section ‘S’, and handing over personnel to India involved in Mumbai attack charge sheet, then if proven the national security scheme will go back in military hands once again for a long time. Though they were not ready to trust the ‘bloody civilians’ anyway to start with, but top military brass digested ‘NRO’ with a barter, but these follies give them fodder. Now that Supreme court has taken cognisance on the application of twice Prime Minister Nawaz Sharif & others and Court has given directions, let’s now see what can be done. Supreme Court has inherent powers to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document (Art.187). and that decree shall be enforceable throughout Pakistan. Supreme Court may be impatient and may seek alternate assistance as, “All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court (Art.190).,” Upon the excuse of Mr. Khosa due to humiliating press conference, SC may appoint an other suitable person i.e a retired judge, diplomat and or a General to assist in finding the truth or near facts. Mind you Chief of Army Staff General Ashfaq Pervez Kiyani is an able man and he has already found the culprits behind an attack on his then boss General Pervez Musharraf, which proves that capacity to deliver is there if there is a will.  In Pakistan , in a chain of command here the President, Premier and his Secretary, Foreign Office, Hussain Haqqani, Mansoor Ijaz, interlocutor(s) (General James) , Mike Mullen, and on to President of USA Barrack Obama’s administration that could be the chain of  the letter and its both ends. What possible action(s) may be taken if it is right that letter is communicated from one end and reached to the other. The thought of it if right is mind blowing.

I have strongest empathy with the mouthpiece of ruling party parking his kids abroad hastily and daringly held a press conference which has an element of ‘contempt’ and malicious allegations on the bench. As far as due process is concerned,  Haqqani’s blackberry & laptop which is core to this investigation must be handed over to the investigator not the third party having a vested interest and stake in this investigation. Hearing criticism on putting former envoy’s name on Exit control list. I must say that if the matter is such that his attendance may not be secured later, it was sane to put embargo and serve him notice to appear. Pakistan has long history of absconders. Yesterdays rulers seldom appear in court and today’s rulers if after plundering abscond will never return until it is politically advantageous. Example of former President , Prime Minister and current interior Minister and Governor Sindh are just a cursory reminder. So putting his name on ECL ensures his participation in process but is not a sign of his ‘guilt’ or a mark of punishment as if he leaves both countries and West have no agreed mechanism to secure their attendance, arrest and cooperation. Example of Dr Afia Siddiqui, General Musharraf,  MQM leadership, and several PPP ministers are on record. As Pakistan in its penal code has a death sentence for an alleged crime and there are allegations readily made of torture during investigation(s) therefore West and United States may refuse to hand over any accused on account of Pakistani’s non signatory position to European Convention on Human Rights 1950 which prohibits ‘torture’ and ‘inhuman and degrading’ treatment (Art 3 ECHR 1950). So stalwart human rights activist Asma Jehangir must hold her horses and plead her client’s case once she gets the first opportunity before Supreme Court as his client is not detained and is resting at Presidential palace. She must query Haqqani’s bosses though as to why they sacked him if he is innocent and is not found ‘guilty’ yet. Haqqani may sue them for unfair dismissal and may claim his job back if he claims his innocence now or once cleared by a probe or a commission of any wrong doing. 

What if people on Pakistani side as alleged are found involved what may happen. We deal with them individually. Haqqani is already sacked or asked to resign. Government secretaries may be disciplined departmentally and may be probed in accordance with the local law once their participation, coercion and neglect is established. Now come the turn of big guns. President may be impeached and be removed from office on the ground of physical or mental incapacity or impeached on a charge of violating the Constitution or gross misconduct (Art.47). My close scrutiny of his office’s oath gives a very clear reading. Article 42 of the Constitution of Pakistan 1973 relevant paragraph of the oath of President (third Schedule) says as following: “That I will bear true faith and allegiance to Pakistan, : That, as President of Pakistan, I will discharge my duties, and perform my functions, honestly, to the best of my ability, faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law, and always in the interest of the sovereignty, integrity, solidarity, well- being and prosperity of Pakistan: That I will not allow my personal interest to influence my official conduct or my official decisions: That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan: That, in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill- will.”Prime Minister can be voted out. A resolution for a vote of no-confidence moved by not less than twenty per centum of the total membership of the National Assembly may be passed against the Prime Minister by the National Assembly and if the resolution is passed by a majority of the total membership of the National Assembly, the Prime Minister shall cease to hold office (Art.95).In such circumstances if the person alleged was inviting foreign army to intervene, then the matter could have been dealt with under an Army Act, in that case, but it could have been explosive and insulting that people of that calibre so easily reached to the top slots and all intervening intelligence mechanism failed. The issue of ECL also would have been irrelevant then as court Martial appeals are heard by Supreme Court post conviction and sentence and Pakistani jails are filled with those who are waiting and being  tried under the Army Act for treasonous and espionage allegations. The government has partially surrendered by sacking Haqqani as he is ‘innocent until proven guilty by a court of law’, but is crying wolf once the wheel of law has started spinning anti clock wise which they did not foresee.

Supreme Court’s action may be disastrous for current civil administration as ‘national security’ as a policy is a domain of the civilian policy makers and parliament & inviting invaders rightly for the law enforcement national security segments. But here, in a hybrid situation, if factual findings go against those involved, then each individual has an option to resign and face the consequences. But to hold an enquiry all participants must be ready to surrender to the supreme court, tribunal or commission duly appointed by superior court. If contemptuous behaviour continues, then ultimately it will smite the thought of civil dispensation and all will suffer. ‘Memo’ was written or not on behalf of Pakistani elite is a legitimate question for public and requires an independent probe. Avoiding this probe will not allow Pakistani military mind set to rest longer sitting on a pile of ‘distrust’ and they may react, if civil rulers do nothing. Their reaction may be disastrous, and faulty but once done, will be considered in pursuance of a legitimate aim to protect the sovereignty security, and borders of the country, ‘the defence of the realm’ concept’. Democrats will be too late if repent later so they must get on to save the system even if with some sacrifices. Lawyers as usual will be on the streets with the nation for the sake of true democracy in Pakistan. Due process is necessary, but one who claims equity must come with clean hands. National Government can be a way forward to resolve the political tension, and ease the pressure saving the civil system and opting out for governance leading to fresh polls, but this administration lacks wisdom and is devoid of acting in time. It will only start acting once the jeeps will start reaching at their gates, so much so is their ‘loyalty’ to state and passion for ‘democracy’. 

Barrister Amjad Malik is a chair of the Association of Pakistani lawyers (UK).

6 December 2011

Memo Saga (part 1)

Barrister Amjad Malik, London 28 November 2011

The moment I read the article of President Asif Ali Zardari in western press declaring the 2 May 2011 ‘operation Geronimo’ a great victory, and Pakistani premier congratulating the nation and hinting it a joint operation, I knew something is wrong here.

The Asian:  http://www.theasians.co.uk/Blog/Post/100/

Frontier Post 2 Dec: http://www.thefrontierpost.com/?p=87045